Stream Away

Submitted by Steve Kolowich on October 5, 2011 - 3:00am

A federal judge on Monday threw out a lawsuit by an educational media trade group and one of its constituents against the University of California over the legality of streaming copyrighted videos on secure course websites.

While the case was dismissed largely on technical grounds, U.S. District Court Judge Consuelo B. Marshall indicated that streaming a copyrighted work on a secure website is no different from holding a screening in a classroom.

“The type of access that students and/or faculty may have, whether overseas or at a coffee shop, does not take the viewing of the DVD out of the educational context,” Marshall wrote in his decision[1]. Because the only rights-holding plaintiff in the case, Ambrose Video Publishing, had licensed UCLA to “publicly perform” its videos in the classroom, streaming it on a secure site was also permissible, the judge said.

However, legal experts say the decision hardly resolved the central question of whether streaming copyrighted videos in online classrooms is protected under the fair use provisions to U.S. copyright law.

The Association for Information and Media Equipment (AIME), along with Ambrose, brought the suit late last year after it found out[2] that the University of California at Los Angeles was facilitating online streaming for its courses. The case attracted a great deal of attention from fair use advocates, who argued -- as did the university -- that allowing students to stream videos via password-protected course websites was no different from convening a group viewing in a classroom, which they argued was covered under fair use. AIME has countered that in order to convert the videos into digital versions that could be streamed, UCLA was copying the videos’ content unlawfully.

The trade group and a number of its members spoke out[3] against streaming last year. They asserted that if each university bought only a single copy of each educational film it wanted, then allowed students to stream them for free, it would ruin the companies that produce the films, and the supply of educational films would dry up.

But it was the legal question, not the economic one, that was at issue in Monday’s ruling. And the judge seemed to favor UCLA’s position.

The university cheered the decision. “The court ruling acknowledges what UCLA has long believed, that streaming licensed DVDs related to coursework to UCLA students over UCLA's secure network is an appropriate educational use,” Scott Waugh, the university’s executive vice chancellor and provost, said in a statement[4].

But several legal analysts following the case said the implications are not quite that broad. Because Ambrose had explicitly granted UCLA permission to “publicly perform” its videos as part of its licensing agreement, and the judge determined that UCLA's creation of digital copies of the videos was “an incidental use of [its] right to publicly perform the DVDs,” the ruling did not resolve the question of whether streaming in an online classroom is fair use when no such public performance license is given. “That argument may yet be plausible, but it was not decided in this case,” wrote Kevin Smith, scholarly communications officer at Duke University, in a blog post[5].

“[T]his ruling does not offer the higher ed community a slam dunk fair use victory,” Smith later added, “it merely sharpens a couple of the arrows in the quiver of that argument.”

Nor did the ruling preclude another copyright holder -- presumably one that does not grant the university license to perform its films publicly -- from bringing a similar suit against UCLA over its streaming practices. Such a plaintiff could get around the state’s “sovereign immunity” by suing university officers “in their individual capacity,” said the judge.

“The question is,” said Brandon Butler, director of public policy initiatives for the Association of Research Libraries, “can they find a rights-holder that wants to go through with this?”

Allen Dohra, the president of AIME, did not immediately respond to telephone or e-mail messages.

Peter DeCherney, an English and cinematic studies professor at the University of Pennsylvania, whose forthcoming book focuses on copyright and the film industry, said Monday’s decision was encouraging to educators who rely heavily on video.

Despite its ambiguity, the judge’s ruling “takes on the changing nature of the classroom and the educational experience,” DeCherney told Inside Higher Ed in an e-mail.

“Almost all teaching now spills over into cyberspace, and the rights that we depend on to teach effectively need to encompass that pedagogical space as well,” he wrote. “Thanks to UCLA, we have a first legal step in that direction.”